Sunday, April 13, 2008

In Jail Without Bail

New legislation offers hope for Georgia juveniles in a state that’s endured more than 10 years of federal monitoring.

By Stephanie Ramage

Georgia’s Department of Juvenile Justice (DJJ) has allowed an important 10-year anniversary to pass without so much as a blink of recognition.

It was on Feb. 13, 1998 that the U.S. Department of Justice (DOJ) filed a complaint in federal court against the DJJ for failing to properly supervise and care for juveniles in its detention centers.

One would think the DJJ would have seen the anniversary as an opportunity to trumpet its improvements since those dark days a decade ago. But it did not, because the Georgia DJJ remains under federal monitoring to this day.

“This matter is open and ongoing, and therefore, we have no comment,” U.S. DOJ Spokesman Erik Ablin wrote to The Sunday Paper in an e-mail on April 7. When asked to clarify the DJJ case status, he responded: “We are monitoring and will continue to do so until reform requirements are addressed.”

The feds continue to monitor Georgia under the provisions of the lawsuit’s memorandum of agreement, or MOA as it’s called. The MOA lists requirements for the state to meet within a certain period of time to ward off a federal takeover of Georgia’s juvenile justice system. The DJJ was supposed to begin implementation of reforms by Jan. 1, 1999.

Steve Teske, who has been a juvenile court judge in Clayton County since shortly after the MOA was hammered out, says Georgia is in compliance with all its requirements and should no longer be on the federal watch list.

“It has been so long since the DOJ threatened to sue, that frankly, my feeling is they should just go ahead and sue us,” Teske says. “Because the conditions they threatened to sue over don’t even exist anymore.”

Teske, who serves as vice chair of the Governor’s Children and Youth Coordinating Council, the advisory council that determines how federal funding is spent in the state juvenile system, is also the president-elect of the Georgia Council of Juvenile Court Judges—and he sits on the board of the DJJ.

Teske says the U.S. DOJ hasn’t been monitoring Georgia’s juvenile facilities, which house 2,589 offenders.

“I have been concerned that the DOJ has not recently monitored us,” he says. “I have been asking them to monitor us. I have wondered ‘What’s it going to take to get them in here to monitor us?’ They need to monitor us, and if they find that we are not in compliance, then I would tell them to go ahead with the lawsuit, to just do it, because we are doing a better job of complying than any other state.”

Teske suspects that the Justice Department’s resources have been stretched too thin to fulfill its monitoring obligations more quickly.

But Bill Riley, a former DJJ chief of staff who left the department in 2006 and now teaches for the University of Georgia’s school of social work, points out that “There is a provision in the MOA that allows the state DJJ to make a motion for a dismissal of the case, and the fact that it hasn’t done so says something about the testicular fortitude of the leadership of the DJJ.”

It might also say something about how confident the department feels about its policies and procedures. While at the DJJ, Riley became aware that juveniles were being incarcerated without bail. Many don’t know about bail, he says, because they don’t have attorneys.

And although the MOA doesn’t mention bail, what are known as the “core protections” of the Juvenile Justice and Delinquency Prevention Act rely upon equal treatment, including equal access to bail. The DJJ doesn’t oversee all of the intake of juveniles in the state—there are 14 independent jurisdictions like Teske’s Clayton County, so the legislature addressed the issue of bail in its most recent session in the form of House Bill 1245.

The bill seeks to fix some of the representation problems brought to light by the infamous Brian Nichols case. It also includes provisions to make sure that juvenile offenders are provided a defense attorney, who would ostensibly inform them of their right to bail. The bill passed both chambers and is expected to be signed into law by Gov. Perdue by mid-May.

In the meantime, even Teske admits that the bail problem persists, particularly in rural, and some suburban, jurisdictions. He says it has been allowed to continue largely because there are not enough juvenile defense attorneys—and not just any defense attorney will do. Juvenile justice requires someone who knows the system. When the cost of Brian Nichols’ defense wiped out the state’s indigent defense funding, it also wiped out funding for juvenile court public defenders. The ultimate responsibility for making sure a kid is allowed bail, Teske says, falls on the defense attorney. If there’s no defense attorney, there’s sometimes no notification of the right to bail.

“Law school graduates aren’t exactly beating down the doors of the halls of justice to become juvenile defense attorneys,” he says. “Although hopefully, that will improve now.”

Why PlayStation justice works

DJJ Spokesman Steve Hayes says there are signs posted in its facilities informing families of their right to pay bail, and that there is literature given to them and the children taken into custody that notes the right to bail.

Riley says that’s useless.

“By the time they get to a facility, they’ve already seen a judge,” he says. “They’ve already been arraigned. It’s a done deal. They’re ‘posted in the centers’—they’re posted in the reception areas and the children never see those reception areas.”

Riley’s voice is rising until he relates, quietly, how he became aware of kids being held without bail.

“When I was visiting facilities for the state, I always made a point of visiting with the smallest and youngest of the ‘inmates’,” he says. “And I once spoke to a young man who was 10 years old who told me that he had been charged with arson. He was a foster child. On the Fourth of July, he lit off a firecracker in his foster parents’ bathroom, and that was the arson. Any attorney right out of law school would have known that wasn’t arson, but it didn’t matter—it was just a way to get a problem child out of the home. There was no bail. With that on his record, there was no chance that child was going to find a family. The truth is we run those kids through like cattle. We process them.” (Tesko points out that this incident occurred after the U.S. DOJ started monitoring Georgia’s juvenile justice system.)

The usual bail scenario works like this: Let’s say a bystander calls the police on a 12-year-old boy who allegedly belted another kid in the mouth. The 12-year-old will be arrested and then, if he denies that he hit the other kid, he can be held for as long as 13 days—more than 48 hours from time of arrest until the time a judge arraigns him, plus 10 more days until trial. If the 12-year-old boy admits that he hit the other kid, he can be held for as long as 30 days. Parents may be more than happy to pay bail and get their child out of jail, but in some jurisdictions, they’re not given the option. And unfortunately, in a jail, a lot can happen in 13 days—an innocent 12-year-old can be beaten or otherwise harmed by other detainees. Even if they are notified, a family may be strapped for cash.

To avoid the whole question of whether a family has money for bail, Teske has instituted in-kind bail.

“I ask the parent what the child’s favorite toy is, and if they say a PlayStation, for example, I take the PlayStation as bail,” he says. “I also accept sneakers. Because the parents’ money might not mean anything to that kid, but losing his favorite toy or shoes will mean something. And why do we have bail anyway? To make sure that kid comes back to stand trial. They’ll come back for the PlayStation. We don’t want to detain them if we don’t have to.”

With good reason.

“These are not warm and fuzzy places,” says Rick McDevitt, president of the Georgia Alliance for Children. “They are prisons. They are not safe places for children.”

Egregious conditions

The Georgia DJJ’s ongoing monitoring stems from federal findings of “egregious conditions violating the federal rights of youths in Georgia” at the state’s regional youth detention centers (RYDCs) in 1997. The 35-page U.S. DOJ report cites “gross” overcrowding, “abusive disciplinary procedures, abusive use of mechanical and chemical restraints on mentally ill children, lack of supervision, and lack of adequate medical care.” These resulted in some of the incarcerated children requiring hospitalization for treatment of injuries and illnesses.

The education being offered to inmates was also inadequate. One of the federal monitors noted that “In many of the RYDCs we visited, youths may not even have reading materials in their rooms (other than a Bible). And, as discussed below, the prolonged unsupervised idleness leads to fights and sexual assaults, resulting in numerous injuries and hospitalizations in all the facilities.”

And these were not hardened young criminals: In 1998, three-quarters of the juveniles in state custody had been charged with non-violent offenses, and about a third were charged with things as seemingly harmless as truancy.

According to the memorandum of agreement, in order to settle with the DOJ, Georgia had to submit its plans for overhauling the system by Oct. 15, 1998 and had to begin implementing those plans by Jan. 1, 1999. The DOJ would monitor the state’s juvenile justice system until all its requirements were met.

In 2004, says DJJ Spokesman Hayes, the DOJ acknowledged that Georgia had met its requirements in the areas of education, investigation procedures and quality assurance. But, in late 2005, the reform process hit a snag when rumors arose that documents were being falsified. Hayes says even though the DOJ investigated and found that there was “no systematic” falsifying going on, the process slowed down at that point.

He says the DJJ is now preparing for the final visitation by the federal monitors.

“We expect the DOJ to find that we are in compliance in the areas of mental health, medical care and protection from harm,” says Hayes. He doesn’t know when that might be, but he expects it to be soon.

The federal investigators’ 1998 notes are striking. Consider this passage: “One of our experts’ strongest impressions of the RYDCs we visited was the large number of small and young youths who would not be held in such jail-like, high security facilities in other jurisdictions. For example, we encountered a very small 11-year-old boy who was being detained for threatening his fifth grade teacher; a 12-year-old boy with a seizure disorder incarcerated for making a harassing phone call; a 14-year-old girl in secure detention for painting graffiti on a wall; numerous youths detained after relatively minor fights at school; a 16-year-old girl detained for “failing to abide by her father's rules” (throwing objects in her room and skipping school); a 13-year-old girl who had stolen $127 from her mother’s purse; and numerous children who had run away from troubled homes. Many young children were held on charges of ‘terroristic threat,’ which often amounted to nothing more than ‘cussing out’ a teacher or group home staff member.”

Justice for all

One positive effect of the federal oversight has been a shift in the state’s thinking about such infractions. Today, Georgia’s law enforcement officers are more likely to recognize them as symptoms of a lack of willingness on a parent’s part to take responsibility for their children. Teske explains that if a parent dials 911 in Georgia today to report that a child is “too hard to handle,” law enforcement’s response will probably be to get Social Services involved, not necessarily to remove the child from the home—although that is an option if child welfare workers determine that parents are abusive or neglectful—but to try to fix the problem through family counseling and education.

The approach appears to be working. According to Federal Bureau of Investigation data obtained and analyzed by The Sunday Paper, the total number of juveniles, age 17 and younger, arrested in Georgia for running away dropped by nearly half from 1,854 in 1998 to 976 in 2006. Arrests for juvenile offenses against family members—never a favorite charge, judging by its small numbers—dropped from a total of 119 to 77. Vandalism declined by nearly half, from 605 arrests in 1998 to 371 in 2006. These decreases occurred despite an increase in the number of agencies reporting to the FBI, making the lowered number of incidents even more significant.

“When law enforcement started to see that the judges were responding differently, some of them started making their own referrals to community services,” says Teske. “Police cannot put a child in detention; they have to get approval of a juvenile court judge. My intake officers will say, ‘Let the child go, we’ll take care of it.’”

If the offense is serious, he prefers electronic monitoring to incarceration, and all types of offenses can benefit from “wraparound” services—after school programs that offer counseling, monitoring and educational assistance. The most immediate effect of this approach has been to reduce the number of inmates in the system, alleviating overcrowding.

Riley says, however, that what is true in Clayton County, where Judge Teske has a lot of resources to draw on, is not true elsewhere.

“In North Georgia, they’ve stopped arresting runaways because the police saw that nothing was happening. They saw the same runaways over and over again with nothing addressed in the homes they were running from,” he says.

Once again, Teske says, the problem is a matter of respect for the rights of children. A grown up probably knows that he has a right to bail, but a 12-year-old boy doesn’t. Whether he will find out depends upon his attorney, and his attorney depends upon how much money his parents have. And so, Riley says, it’s no surprise that about 71 percent of incarcerated juveniles in Georgia are black. He says that the DJJ’s treatment of children is overwhelmingly appropriate, but there are some problems, depending on whether a jurisdiction is rural and poor or wealthy and suburban, and depending on the parents of the juvenile offenders. The uneven application of justice undermines the whole system.

“If you don’t have a fair system all the way through,” he says. “Then the DJJ is just getting kids ready for the Department of Corrections.” SP